Case: In re Opinions & Orders of this Court Addressing Bulk Collection of Data under the Foreign Intelligence Surveillance Act [FISA Docket Misc. 13-08, FISCR docket 20-1]

13-00008 | Foreign Intelligence Surveillance Court

Filed Date: Nov. 7, 2013

Closed Date: April 24, 2020

Clearinghouse coding complete

Case Summary

For the Civil Rights Litigation Clearinghouse collection of FISA matters, see our special collection. On January 17, 2014, following the disclosure of various dragnet National Security Agency (NSA) surveillance programs by Edward Snowden, the Director of National Intelligence authorized the declassification and public release of numerous orders approving the NSA's so-called "Bulk Telephony Metadata Program" under Section 501 of the Foreign Intelligence Surveillance Act of 1978 ("FISA"), commonl…

For the Civil Rights Litigation Clearinghouse collection of FISA matters, see our special collection.

On January 17, 2014, following the disclosure of various dragnet National Security Agency (NSA) surveillance programs by Edward Snowden, the Director of National Intelligence authorized the declassification and public release of numerous orders approving the NSA's so-called "Bulk Telephony Metadata Program" under Section 501 of the Foreign Intelligence Surveillance Act of 1978 ("FISA"), commonly referred to as Section 215 of the USA PATRIOT Act. A press release is available here.

Under the program, the NSA collected records from large telecommunication companies; virtually all domestic telephone calls. These records, termed "telephone metadata," include the phone numbers placed and received; the date, time and duration of calls; some location identifiers; and calling card numbers. The records did not, however, include the parties' names, addresses, or financial information or the call's content.

The program began under executive authority alone following the September 11, 2001 terrorist attacks. Subsequently, in 2006, the federal government first sought approval of the program from the Foreign Intelligence Surveillance Court ("FISC") under Section 215 of the USA PATRIOT Act. This Section 215 order was reviewed and reapproved by the FISC essentially every 90 days. It was approved dozens of times by many different federal judges, on the FISC, following its initial approval on May 24, 2006 by the FISC. (See BR 06-05, NS-DC-0009 in this Clearinghouse.)

(The government encountered substantial backlash as a result of the disclosure of the Bulk Telephony Metadata Program. While this case was ongoing, on May 27, 2015, a federal circuit court in ACLU v. Clapper (NS-NY-0003 in this Clearinghouse) held that Section 215 did not authorize this program. Then, on June 2, 2015, Congress passed the USA FREEDOM Act of 2015, which prohibited the bulk collection of telephony metadata under Section 215. Instead, the telephone companies now retain this telephony metadata, and to obtain any such metadata the government is required to submit applications for a specific target based on a "specific selection term." This application must be approved by the FISC.)

On November 7, 2013, the American Civil Liberties Union (ACLU) and the Media Freedom and Information Access of Yale Law School (collectively, “movants”) filed a motion in the FISC for release of court records, including opinions that addressed the legal basis for the bulk collection of data under FISA. The movants argued that the First Amendment compelled release of these judicial decisions and that FISC Rule 62 gave the FISC discretion to publish its own orders, opinions, and decisions. The ACLU had previously moved for the FISC to release opinions that interpreted Section 215 of FISA, under docket Misc. 13-02. (See Misc. 13-02, NS-DC-0020 in this Clearinghouse.) The litigation under Misc. 13-02 was still ongoing at the time the ACLU filed this case, but Misc. 13-02 was limited to the disclosure of opinions that addressed only Section 215 of FISA, not all bulk collection programs.

The government opposed the motion, arguing that all the relevant opinions had already been released and that the FISC should not order the government to conduct a separate classification. The government also argued that the movants lacked standing and that the FISC did not typically involve itself in the declassification process. On December 5, 2013, FISC Judge Reggie Walton permitted the motion of the Reporters Committee for Freedom of the Press and a group of 25 media organizations to file a brief as amici curiae in support of the movants.

The case remained pending until 2017. Before then, the movants filed several notices of supplemental authority, informing the FISC regarding relevant new court decisions and statutes. Specifically, on October 30, 2014, the movants filed a notice based on Dhiab v. Obama (PC-DC-0029 in this Clearinghouse), where a federal district court ordered that video evidence from a Guantanamo Bay habeas corpus proceeding be released. On December 4, 2015, the movants filed a second notice citing Section 402 of the USA FREEDOM Act, 50 U.S.C. § 1872, which requires the Director of National Intelligence to conduct declassification reviews of “each decision, order, or opinion issued by” the FISC or FISCR. The movants claimed that this statute reflected Congress’s support for the publication of FISC opinions.

On January 25, 2017, however, FISC Judge Rosemary M. Collyer issued an opinion and order dismissing this case. Judge Collyer noted that the opinions that the movants sought were already released, so what the movants actually sought was access to the redacted material in those opinions that remain classified. She concluded, however, that the First Amendment did not provide a qualified right of access to FISC opinions. Without such a right, the movants could not have standing. 2017 WL 427591.

On February 21, 2017, the movants filed a new motion to alter or amend the court's January 25, 2017 opinion. The movants claimed that the court's opinion contradicted previous FISC rulings and that the grounds for the court's decision was not briefed by any party. On March 22, 2017, pursuant to FISC Rule 49, the court issued an order for en banc—that is, with all the judges of the FISC—reconsideration of whether the movants had standing.

Because Judge Collyer's analysis of the standing issue conflicted with the analysis of another FISC judge in a similar case, see In re Orders of This Court Interpreting Section 215 of the Patriot Act, No. Misc. 13–02, 2013 WL 5460064 (FISC Sept. 13, 2013) (directing the government to publish a FISC opinion), NS-DC-0020, the FISC judges without a motion decided to granted en banc reconsideration of Judge Collyer's order “on the ground that it is necessary to secure or maintain uniformity of the court's decisions.” In re Bulk Collection, 2017 WL 1500037, at *1 (FISC Mar. 22, 2017) (citing FISC Rule of Procedure 49). Subsequently, in an opinion issued on November 9, 2017, the en banc court held, by a six-to-five vote, that the movants had established the requisite injury in fact to raise their First Amendment claim. In re Bulk Collection, 2017 WL 5983865 (FISC Nov. 9, 2017) (en banc).

Judge Boasberg, writing for the majority, reasoned that Judge Collyer's initial opinion required too specific of a showing to establish standing. All that was required to show standing was a colorable claim that such a right might exist, even if the claim ultimately failed on the merits. There was no reasonable basis, Judge Boasberg explained, for holding otherwise in the FISA context.

On January 5, 2018, the FISC judges certified the following question for review: “Whether Movants have adequately established Article III standing to assert their claim of a qualified First Amendment right of public access to FISC judicial opinions.” In re Bulk Collection, 2018 WL 396244, at *2 (FISC Jan. 5, 2018). On January 9, 2018, the FISCR accepted the certification. It appointed an amicus curiae, Prof. Laura Donohue.

On March 16, 2018, the FISC affirmed, agreeing with the majority of the FISC judges that the movants had standing to seek disclosure of the classified portions of the opinions at issue. As the FISC en banc majority explained, standing is a prerequisite to a party's filing suit. It entails a threshold inquiry, one that is separate from the merits of the underlying claim—and one that requires far less substantiation. Movants need not show that they are ultimately entitled to access the materials in question. Instead, they need only show that their claim is not immaterial nor wholly insubstantial and frivolous. Regardless of whether the movants are entitled to relief on their claim, they have standing to present that question to the court. In re Certification of Questions of Law to Foreign Intelligence Surveillance Court of Review, No. FISCR 18-01, 2018 WL 2709456, at *1 (Foreign Intel. Surv. Ct. Mar. 16, 2018).

On May 1, 2018, Judge Collyer ordered that parties file briefs setting forth the basis for the assertion of FISC subject matter jurisdiction over their claim. Briefs were exchanged on August 1, 2018.

On February 11, 2020, the FISC released their opinion. The court clarified that the movants were seeking a large amount of redacted, nonpublic material in the opinions released addressing the bulk collection of data. The court found that it had subject matter jurisdiction over the Motion for the Release of Court Records but the First Amendment did not confer a qualified right of public access to the material sought nor was there any reason for the court to exercise any discretion it might have had in granting the relief requested. Thus, the Motion for the Release of Court Records was denied and the motion dismissed. 2020 WL 897659.

The movants filed a petition for review or in the alternative a writ of mandamus, functionally an appeal, for the February 11 decision on March 11, 2020. Once the case moved to the FISCR, the case received a new docket number, 20-01.

Shortly after the petition for review was filed, the FISCR entered a show cause order on March 13 asking the movants to discuss if the FISCR had jurisdiction to rule on this petition. The movants were given a deadline of March 26 to file a brief and the government was given a deadline of April 6 if it wanted to respond to the brief. Due to the COVID-19 pandemic, the movants filed an unopposed motion on March 16 to extend the deadlines to file their initial brief to April 27. The FICSR granted this motion in part, setting the new deadline for the movant's show cause brief to April 9 in a March 17 order, but moved the deadline back to April 17 in an April 10 order.

In keeping with the revised schedule, the movants submitted their show cause order on April 17. They urged the FISCR to take the case, highlighting that the FISCR has "jurisdiction to review the denial of any application made under this chapter." They argued that the access petition initially filed was an "application" to the FISC because it sought relief from the FISC using 50 U.S.C. § 1803(b) of the FISA statute. The movants added that the FISCR has ancillary jurisdiction over the matter because as an Article III court, it can rule on motions to access its own records, which should include petitions for records access that arrive from the FISC on appellate review. Finally, the movants argued that they had jurisdiction for a writ of mandamus under the All Writs Act, since the FISA statute does not preclude mandamus review and invites the FISCR to "take such actions . . . as are reasonably necessary to administer [its] responsibilities under the charter."

The government filed its response brief arguing against granting jurisdiction on schedule on April 22. It argued that the initial petition was not an "application" under FISA because the claim is based in the First Amendment, not the FISA statute itself. It added that, because the court lacked jurisdiction from the FISA statute, it was unable to exercise ancillary or All Writs jurisdiction, because these arguments all depend on the court having jurisdiction from another source.

The FISCR issued an opinion on April 24, 2020, denying jurisdiction to the petition. The panel, composed of Jose Cabranes, Richard C. Tallman, and David B. Sentelle, focused on the definition of "application" in other parts of the FISA statute, which include FISA production or nondisclosure orders, directives to an electronic communications provider, and orders approving targeting. Since the petition didn't fall in any of these categories, they held it was not an application for the purposes of the statute. They added that the movants were not the target of a FISA order, so they lacked standing to pursue the claim. They declined to exercise ancillary jurisdiction, noting that the Supreme Court warned that such jurisdiction should be cautiously invoked, and highlighting that the lack of an explicit grant of jurisdiction in this area gave them pause. Finally, they agreed with the government's interpretation of the All Writs Act, stating that it required a grant of jurisdiction elsewhere in the FISA statute to be exercised. 957 F.3d 1344.

This decision dismissed the petition for review or writ of mandamus, and effectively terminated the case in the FISC and FISCR. The case was not appealed to the Supreme Court, and the case is closed.

Summary Authors

Elizabeth Homan (5/23/2014)

Ian Williams (12/1/2016)

John He (1/7/2018)

Edward Cullen (2/14/2019)

Cedar Hobbs (2/16/2020)

Ellen Aldin (12/15/2020)

Related Cases

ACLU v. FBI, Southern District of New York (2011)

In re Orders Issued by This Court Interpreting Section 215 of the PATRIOT Act [FISA Docket Misc. 13-02], Foreign Intelligence Surveillance Court (2013)

In re Motion of ProPublica, Inc. for the Release of Court Records [FISC Docket Misc. 13-09], Foreign Intelligence Surveillance Court (2013)

In re Opinions and Orders of this Court Containing Novel or Significant Interpretations of Law [FISA Docket Misc. 16-01; FISCR Docket Misc. 20-02], Foreign Intelligence Surveillance Court (2016)

FISA Court Matters relating to disclosure of Carter Page surveillance records: Four FISC cases [FISC Misc. 18-01, Misc. 18-02, Misc. 18-03, and Misc. 19-01], Foreign Intelligence Surveillance Court (2018)

People


Judge(s)

Collyer, Rosemary M. (District of Columbia)

Walton, Reggie B. (District of Columbia)

Attorneys(s) for Plaintiff

Abdo, Alex (New York)

Bloch-Wehba, Hannah (Connecticut)

Jaffer, Jameel (New York)

Kaufman, Brett Max (New York)

Langford, John (Connecticut)

Manes, Jonathan (New York)

Michelman, Scott (District of Columbia)

Schulz, David A (New York)

Judge(s)

Collyer, Rosemary M. (District of Columbia)

Walton, Reggie B. (District of Columbia)

Attorneys(s) for Plaintiff

Abdo, Alex (New York)

Bloch-Wehba, Hannah (Connecticut)

Jaffer, Jameel (New York)

Kaufman, Brett Max (New York)

Langford, John (Connecticut)

Manes, Jonathan (New York)

Michelman, Scott (District of Columbia)

Schulz, David A (New York)

Spitzer, Arthur (District of Columbia)

Toomey, Patrick Christopher (New York)

Attorneys(s) for Defendant

Boente, Dana J. (District of Columbia)

Carlin, John P. (District of Columbia)

Evans, Stuart J. (District of Columbia)

Guahar, Tashina (District of Columbia)

McCord, Mary B. (District of Columbia)

Patterson, Nicholas J. (District of Columbia)

Smith, Jeffrey Michael (District of Columbia)

Wiegmann, J. Bradford (District of Columbia)

Other Attorney(s)

Brown, Bruce D. (Virginia)

Donohue, Laura (District of Columbia)

Documents in the Clearinghouse

Document

13-00008

Docket

In re Opinions and Orders of this Court Addressing Bulk Collection of Data under the Foreign Intelligence Surveillance Act [FISA Docket Misc. 13-08]

May 1, 2017

May 1, 2017

Docket

13-00008

Motion for the Release of Court Records

In re Opinions and Orders of this Court Addressing Bulk Collection of Data Under The Foreign Intelligence Surveillance Act

Nov. 7, 2013

Nov. 7, 2013

Pleading / Motion / Brief

13-00008

Briefing Order

In re Opinions and Orders of this Court Addressing Bulk Collection of Data Under The Foreign Intelligence Surveillance Act

Nov. 8, 2013

Nov. 8, 2013

Order/Opinion

13-00008

Motion of the Reporters Committee for Freedom of the Press and 25 Media Organizations for Leave to File Brief as Amici Curiae

In re Opinions and Orders of this Court Addressing Bulk Collection of Data Under The Foreign Intelligence Surveillance Act

Nov. 26, 2013

Nov. 26, 2013

Pleading / Motion / Brief

13-00008

Brief of Amici Curiae

In re Opinions and Orders of this Court Addressing Bulk Collection of Data Under The Foreign Intelligence Surveillance Act

Nov. 26, 2013

Nov. 26, 2013

Pleading / Motion / Brief

13-00008

The United States' Opposition to the Motion for The Release of Court Records

In re Opinions and Orders of this Court Addressing Bulk Collection of Data Under The Foreign Intelligence Surveillance Act

Dec. 6, 2013

Dec. 6, 2013

Pleading / Motion / Brief

13-00008

Movants' Reply In Support of Their Motion

In re Opinions and Orders of this Court Addressing Bulk Collection of Data Under The Foreign Intelligence Surveillance Act

Dec. 20, 2013

Dec. 20, 2013

Pleading / Motion / Brief

13-00008

Notice of Supplemental Authority

In re Opinions and Orders of this Court Addressing Bulk Collection of Data under the Foreign Intelligence Surveillance Act [FISA Docket Misc. 13-08]

Oct. 30, 2014

Oct. 30, 2014

Notice Letter

13-00008

Notice of Supplemental Authority

In re Opinions and Orders of this Court Addressing Bulk Collection of Data under the Foreign Intelligence Surveillance Act [FISA Docket Misc. 13-08]

Dec. 4, 2015

Dec. 4, 2015

Notice Letter

13-00008

Opinion

In re Opinions and Orders of this Court Addressing Bulk Collection of Data under the Foreign Intelligence Surveillance Act [FISA Docket Misc. 13-08]

2017 WL 427591

Jan. 25, 2017

Jan. 25, 2017

Order/Opinion

Resources

Docket

Last updated Aug. 6, 2022, 3 a.m.

ECF Number Description Date Link Date / Link

Reply Brief of Amicus Curiae Misc 13-08 Reply Brief of Amicus Curiae 180802.pdf

Aug. 2, 2018

Aug. 2, 2018

Movants' Reply Brief In Response to the Court's Order of May 1, 2018 Misc 13-08 Movants' Reply Brief In Response to the Court's Order of May 1, 2018.pdf

Aug. 2, 2018

Aug. 2, 2018

Misc 13-08 United States' Response Brief Regarding Subject Matter Jurisdiction Misc 13-08 United States' Response Brief Regarding Subject Matter Jurisdiction.pdf

July 13, 2018

July 13, 2018

Amicus Appendix Misc 13-08 Amicus Appendix.pdf

June 14, 2018

June 14, 2018

Movants' Opening Brief in Response to the Court's Order of May 1, 2018 Misc 13-08 Movants' Opening Brief In Response to the Court's Order of May 1, 2018 180613.pdf

June 14, 2018

June 14, 2018

Brief of Amicus Curiae Misc 13-08 Brief of Amicus Curiae 180613.pdf

June 14, 2018

June 14, 2018

Motion to Consolidate Docket Nos. Misc. 13-08 & 16-01 Misc 13-08 16- 01 Motion to Consolidate 13-08 and 16-01 180613.pdf

June 14, 2018

June 14, 2018

IN RE OPINIONS & ORDERS OF THIS COURT ADDRESSING BULK COLLECTION OF DATA UNDER THE FOREIGN INTELLIGENCE SURVEILLANCE ACT. Misc 13-08 Opinions and Orders.pdf

May 2, 2018

May 2, 2018

Certification of Questions of Law to the Foreign Intelligence Surveillance Court of Review Misc 13 08 Certification Order with Attached En Banc Decision.pdf

Jan. 7, 2018

Jan. 7, 2018

Misc 13-08 Opinion November 9 2017 Misc 13-08 Opinion November 9 2017.pdf

Nov. 9, 2017

Nov. 9, 2017

Misc 13-08 United States' Response to Movant's En Banc Opening Brief Misc 13-08 United States' Response to Movant's En Banc Opening Brief.pdf

May 1, 2017

May 1, 2017

Misc 13-08 Movants' En Banc Reply Brief Misc 13-08 Movants' En Banc Reply Brief.pdf

May 1, 2017

May 1, 2017

Misc 13-08 Movants' En Banc Opening Brief Misc 13-08 Movants' En Banc Opening Brief.pdf

April 17, 2017

April 17, 2017

Misc 13-08 Supplemental Misc 13-08 Supplemental

April 17, 2017

April 17, 2017

Misc 13-08 Unted States' Legal Brief to the En Banc Court Misc 13-08 United States' Legal Brief to the En Banc Court.pdf

April 17, 2017

April 17, 2017

Movants' Motion to Alter or Amend the Judgement & for Joint Briefing with Case Misc. 16-01 Misc 13-08 Motion.pdf

Feb. 21, 2017

Feb. 21, 2017

Misc. 13-08 Opinion and Order Misc 13-08 Opinion and Order.pdf

Jan. 25, 2017

Jan. 25, 2017

Notice of Supplemental Authority Misc 13-08 Notice of Supplemental Authority.pdf

July 6, 2016

July 6, 2016

Notice of Supplemental Authority Regarding Plaintiffs' Motion for Misc 13-08 Notice of Supplemental Authority.pdf

Nov. 3, 2014

Nov. 3, 2014

MOTION OF THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS AND 25 MEDIA ORGANIZATIONS FOR LEAVE TO FILE BRIEF AS AMICI CURIAE IN SUPPORT OF THE NOVEMBER 6, 2013 MOTION BY THE AMERICAN CIVIL LIBERTIES UNION, ET AL., FOR THE RELEASE OF COURT RECORDS; THE OCTOBER 11, 2013 MOTION BY THE MEDIA FREEDOM AND INFORMATION ACCESS CLINIC FOR RECONSIDERATION OF THIS COURT'S SEPTEMBER 13, 2013 OPINION ON THE ISSUE OF ARTICLE III STANDING; AND THE NOVEMBER 12, 2013 MOTION BY Misc 13-02 Brief-2.pdf

April 17, 2014

April 17, 2014

ORDER Misc 13-02 Order-6.pdf

April 17, 2014

April 17, 2014

BRIEFING ORDER Misc 13-08 Order-1.pdf

April 16, 2014

April 16, 2014

MOVANTS' REPLY IN SUPPORT OF THEm MOTION FOR THE RELEASE OF COURT RECORDS Misc 13-08 Reply-1.pdf

April 16, 2014

April 16, 2014

MOTION OF THE AMERICAN CIVIL LIBERTIES UNION, THE AMERICAN CIVIL LIBERTIES UNION OF THE NATION'S CAPITAL, AND THE MEDIA FREEDOM AND INFORMATION ACCESS CLINIC FOR THE RELEASE OF COURT RECORDS Misc 13-08 Motion-2.pdf

April 16, 2014

April 16, 2014

BRIEF OF AMICI CURIAE THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS AND 25 MEDIA ORGANIZATIONS, IN SUPPORT OF THE NOVEMBER Misc 13-02 Motion-3.pdf

April 16, 2014

April 16, 2014

THE UNITED ST A TES' OPPOSITION TO THE MOTION OF THE AMERICAN CIVIL LIBERTIES UNION. ETAL .. FOR THE RELEASE OF COURT BECOBDS Misc 13-08 Opposition-1.pdf

April 16, 2014

April 16, 2014

Case Details

State / Territory: District of Columbia

Case Type(s):

National Security

Special Collection(s):

Foreign Intelligence Surveillance Act -- All Matters

Foreign Intelligence Surveillance Act -- Telephony Metadata

Foreign Intelligence Surveillance Act—Internet Metadata

Foreign Intelligence Surveillance Court

Key Dates

Filing Date: Nov. 7, 2013

Closing Date: April 24, 2020

Case Ongoing: No

Plaintiffs

Plaintiff Description:

Plaintiffs are the American Civil Liberties Union and the Media Freedom and Information Access Clinic at Yale Law School.

Plaintiff Type(s):

Non-profit NON-religious organization

Attorney Organizations:

ACLU National (all projects)

ACLU Affiliates (any)

Public Interest Lawyer: Yes

Filed Pro Se: No

Class Action Sought: No

Class Action Outcome: Not sought

Defendants

Department of Justice, Federal

Defendant Type(s):

Law-enforcement

Case Details

Causes of Action:

All Writs Act, 28 U.S.C. § 1651

FISA Title I Warrant (Electronic Surveillance), 50 U.S.C. §§ 1801-1812

FISA Title III Warrant (Physical Search), 50 U.S.C. §§ 1821-1829

FISA Title IV order (pen register/trap-and-trace), 50 U.S.C. §§ 1841-1846

FISA Title V order (PATRIOT Act § 215, business records or other tangible things), 50 U.S.C. §§ 1861-1862

Constitutional Clause(s):

Freedom of speech/association

Unreasonable search and seizure

Availably Documents:

Complaint (any)

Non-settlement Outcome

Any published opinion

Outcome

Prevailing Party: Defendant

Nature of Relief:

None

Source of Relief:

None

Issues

General:

Confidentiality

Record-keeping

Records Disclosure

Search policies

Terrorism/Post 9-11 issues